Citation Nr: 1826416
Decision Date: 05/02/18 Archive Date: 05/14/18
DOCKET NO. 14-41 029A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to a disability rating in excess of 10 percent for painful motion of the left knee status post-surgical repair.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. Dean, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the U.S. Air Force from May 2003 to December 2008.
This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran had included the issue of entitlement to an increased rating for urinary incontinence in her Notice of Disagreement filed in July 2011. In the statement submitted in December 2014 that was accepted in lieu of submission of VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran excluded that claim from her appeal. Therefore, the Board does not have jurisdiction over that claim and will not further address it herein.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Service treatment records reflect the Veteran's treatment for a 2003 injury to the left knee, including a September 2004 tibial tubercle transfer Fulkerson osteotomy and other operations that followed. The Veteran received a VA examination of her left knee in January 2010 and service connection for a left knee disability, status post-surgery, was awarded by a July 2010 rating decision.
In July 2011, the Veteran filed a Notice of Disagreement with the rating assigned for the left knee disability by the July 2010 rating decision. In her statement, the Veteran said that her left knee injury had only gotten worse since surgery, that it now had a reduced range of motion, and that it was giving out more frequently than ever.
The RO ordered a new examination of the knee. In a July 2013 Disability Benefits Questionnaire and an attached written report, a private practitioner said that it was the right knee rather than the left that had been injured in 2003 and was operated upon. The RO's request for an examination asked for an assessment of her left leg condition but the private practitioner said that "the problem is far more importantly concerned with her many operations on her right knee and its current state of stiffness and instability." (Emphasis in original.)
The Veteran's service treatment records, the 2010 VA examination, and the Veteran's written statement of July 2011 demonstrate that it is the Veteran's left knee that is service-connected and has had multiple surgeries, not her right knee. As such, the Board finds that the July 2013 examination is inconsistent with the record and inadequate for that reason. Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a new examination to assess the severity of the Veteran's service-connected left knee disability must be obtained on remand.
Accordingly, the case is REMANDED for the following actions:
1. Contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of the claim being remanded. Based on her response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources.
Regardless of the Veteran's response, obtain any VA treatment records that are not yet included in the claims file. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e).
2. After completing #1, schedule the Veteran for a VA examination for the purpose of determining the nature and current severity of her service-connected left knee disability. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All indicated diagnostic tests and studies must be accomplished. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible.
3. Then, review the expanded record and readjudicate the claim seeking an increased disability rating for the left knee disability. If the benefit sought is not granted in full, the Veteran and her representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
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M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).